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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 20,000 aliens who have earned a masters or higher degree from a U.S.
institution of higher education.154
Under the current regulation, all petitioners seeking to file an H1B capsubject petition must first electronically submit a registration for each beneficiary on whose behalf they seek to file an H1B cap-subject petition, unless USCIS suspends the registration requirement.155 USCIS monitors the number of H1B registrations submitted during the announced registration period of at least 14 days and, at the conclusion of that period, if more registrations are submitted than projected as needed to reach the numerical allocations, randomly selects from among properly submitted registrations the number of registrations projected as needed to reach the H1B
numerical allocations.156 Under this random H1B registration selection process, USCIS first selects registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS
then selects from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. A
prospective petitioner whose registration is selected is notified of the selection and instructed that the petitioner is eligible to file an H1B capsubject petition for the beneficiary named in the selected registration within a filing period that is at least 90
days in duration and begins no earlier than 6 months ahead of the actual date of need commonly referred to as the employment start date.157 When
registration is required, a petitioner seeking to file an H1B cap-subject petition is not eligible to file the petition unless the petition is based on a valid, selected registration for the beneficiary named in the petition.158
Prior to filing an H1B petition, the employer is required to obtain a certified Labor Condition Application LCA from the Department of Labor DOL.159 The LCA form collects information about the employer and the occupation for the H1B workers. The LCA requires certain attestations from the employer, including, among others, that the employer will pay the H1B
workers at least the required wage.160
This final rule amends DHS regulations concerning the selection of electronic registrations submitted by or on behalf of prospective petitioners seeking to file H1B cap-subject petitions or the selection of petitions, if the registration process is suspended, which includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for ranking and selection based on OES
wage levels. When applicable, USCIS
will rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and in the areas of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I and below.161 For registrants relying on a private wage survey, if the proffered wage is less than the corresponding level I OES wage, the registrant will select the Wage Level I

1717

and below box on the registration form.162 If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that wage level a sufficient number of registrations needed to reach the applicable numerical limitation.163
3. Historic Population The historic population consists of petitioners who file on behalf of H1B
cap-subject beneficiaries in other words, beneficiaries who are subject to the annual numerical limitation, including those eligible for the advanced degree exemption. DHS uses the 5-year average of H1B cap-subject petitions received for FYs 2016 to 2020
211,797 as the historic estimate of H1B cap-subject petitions that were submitted annually.164 Prior to publication of U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Fee Schedule Final Rule,165 H1B
petitioners submit Form I129 with applicable supplements for H1B
petitions. Through the Fee Schedule Final Rule, DHS created a new Form I
129 for H1B petitioners.166 Form I129
does not include separate supplements as relevant data collection fields have been incorporated into Form I129. DHS
assumes that the number of petitioners who previously filled out the Form I
129 and H1B supplements is the same as the number of petitioners who will complete the new Form I129H1.

TABLE 3H1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS FOR FY 2016FY 2020
Total number of H-1B cap-subject petitions submitted
Fiscal year
tkelley on DSKBCP9HB2PROD with RULES3

2016
2017
2018
154 See INA section 214g5 and 7, 8 U.S.C.
1184g5 and 7.
155 See 8 CFR 214.2h8iiiA.
156 See 8 CFR 214.2h8iiiA56.
157 See 8 CFR 214.2h8iiiD2.
158 See 8 CFR 214.2h8iiiA1.
159 See 8 CFR 214.2h4iB.
160 See 20 CFR 655.731 through 655.735.
161 See new 8 CFR 214.2h8iiiA1i.
162 See new 8 CFR 214.2h8iiiA1i.
163 See new 8 CFR 214.2h8iiiA56.
164 In FY 2018, 198,460 H1B petitions were submitted in the first five days that cap-subject petitions could be submitted, a 16 percent decline in H1B cap-subject petitions from FY 2017.
Though the receipt of H1B cap-subject petitions fell in FY 2018, the petitions received still far
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232,973
236,444
198,460

exceeded the numerical limitations, continuing a trend of excess demand since FY 2011. For H1B
filing petitions data prior to FY 2014, see U.S.
Department of Homeland Security, U.S. Citizenship and Immigration Services, Reports and Studies, https www.uscis.gov/tools/reports-studies/reportsand-studies last visited Sept. 2, 2020.
165 DHS estimates the costs and benefits of this final rule using the newly published U.S.
Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, final rule Fee Schedule Final Rule, and associated form changes, as the baseline. 85 FR 46788 Aug. 3, 2020. The Fee Schedule Final Rule was scheduled to go into effect on October 2, 2020. On September 29, 2020, the U.S. District Court for the Northern District of California issued a nationwide injunction, which prevents DHS from implementing the Fee Schedule
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Total number of H-1B
petitions selected 97,711
95,818
95,923

Number of petitions filed with Form G28
72,292
68,743
78,900

Final Rule. See Immigrant Legal Resource Center v.
Wolf, No. 4:20-cv-5883 N.D. Cal. Sept. 29, 2020.
In addition, on October 8, 2020, DHS was also preliminarily enjoined from implementing and enforcing the Fee Schedule Final Rule by the U.S.
District Court for the District of Columbia, including by adopting any form changes associated with the rule. See Northwest Immigrant Rights Project v. U.S. Citizenship and Immigration Servs., 1:19-cv-03283RDM D.D.C. Oct. 8, 2020. DHS
intends to vigorously defend these lawsuits and is not changing the baseline for this final rule as a result of the litigation. Should DHS not prevail in the Fee Schedule Final Rule litigation, this final rule may reflect overstated transfers, costs, and opportunity costs associated with the filing of the Form I129.
166 See Fee Schedule Final Rule, 85 FR 46788.

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